Celebrating Asian American and Pacific Islander Heritage Month: Intellectual Property Law and its Limitations in Protecting Cultural Expression
Asian American and Pacific Islander (AAPI) inventors, artists, and entrepreneurs have long been at the forefront of innovation. The U.S. Patent and Trademark Office has granted numerous patents and trademarks to AAPI inventors and brands. Designers like Vera Wang, and engineers like Dr. Min Chueh Chang who contributed to the development of the oral contraceptive pill, have shaped both commercial industries and scientific progress, underscoring the vital role of IP rights in recognizing and incentivizing creative output.
Yet, IP law has also revealed its limitations in protecting traditional cultural expressions. U.S. copyright and trademark law, rooted in Western notions of originality and individual authorship, can leave traditional knowledge, folklore, and cultural expressions vulnerable to misappropriation and commodification without proper attribution, compensation, or legal remedy.
For example, a Chicago-based company applied for and registered the trademark ALOHA POKE for catering, restaurant, and take-out services. The company then sent cease-and-desist letters to native Hawaiian-owned restaurants using ALOHA in connection with their poke restaurants. While permissible under current Lanham Act standards, there was a significant public backlash against policing the widely-used Hawaiian term “ALOHA.” Native Hawaiians felt the Chicago company was trying to regulate their language and culture.
Similarly, a company owned by David Chang (a Korean American leader in the Asian American culinary space through his restaurant and brand Momofuku), applied to register the trademark CHILI CRUNCH for a spicy chili oil condiment common throughout many Asian cultures. The company sent out several cease-and-desist letters objecting to the use of CHILI CRUNCH (or CHILE CRUNCH), which received intense public backlash. The criticism by consumers and small-business owners eventually caused Chang to issue a formal apology stating that he would not continue to enforce trademark rights in the CHILI CRUNCH mark.
Such public backlash highlights how a federal trademark registration can marginalize the very communities from which cultural expressions originate. Internationally, the World Intellectual Property Organization has explored these issues through its Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore.
For IP attorneys, celebrating AAPI Heritage Month is not only about acknowledging historical contributions, but it also is about recognizing that intellectual property law may not adequately protect cultural and traditional knowledge.
As the legal landscape continues to adapt, a culturally responsive and inclusive approach to IP may help ensure that cultural innovation, expression, and heritage are respected and preserved.
For further information, please contact Reema Pangarkar or your CLL attorney.
Associate
Email | 212.790.9299
Reema’s practice focuses on trademark prosecution, clearance, and maintenance, as well as general intellectual property matters.